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en-usTechdirt. Stories filed under "neutral"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Mon, 26 Jun 2017 09:36:00 PDTWisconsin Speech Bill Tries To Keep Universities Neutral On Public Policy Debates, Which Is Batshit CrazypantsTimothy Geignerhttps://www.techdirt.com/articles/20170612/11431537573/wisconsin-speech-bill-tries-to-keep-universities-neutral-public-policy-debates-which-is-batshit-crazypants.shtml
https://www.techdirt.com/articles/20170612/11431537573/wisconsin-speech-bill-tries-to-keep-universities-neutral-public-policy-debates-which-is-batshit-crazypants.shtml
As you are likely already aware, there is something of a debate about debates that occur on college campuses these days. Amidst a climate of ultra-polarized politics, there have been several high profile incidents on college campuses involving a revolt by student bodies -- and, allegedly, outside troublemakers -- over specific speakers invited onto campus and topics opened for debate. In reaction to these revolts that generally end with colleges uninviting speakers, some states have decided to try to legislate against this sort of thing in the name of free speech. It's one of those unhappy circumstances in which everyone on every side appears to be wrong. Student revolts and petitions to uninvite speakers are themselves a form of speech and worthy of protection, even if that sort of thing is antithetical to the university experience and ultimately works counter to the aims of the students doing the revolting. Meanwhile, the uninvited and their supporters are shouting about censorship in a way that suggests their views must be tolerated without reaction, which is a complete misunderstanding of how free speech works. As for the politicians, the haphazard decision to legislate on matters of speech in this matter betrays a lack of understanding of how sacred our free expression laws are in America and the care with which any lawmakers ought to take on the topic.

For an example of that, we need only look to Wisconsin, where a bill is being considered in reaction to all of this that would essentially force universities to take no position on any current topic that can be seen as controversial. School administrators are rightly concerned about the laughably vague language in the bill.

The trouble comes from this section of the bill: “That each institution shall strive to remain neutral, as an institution, on the public policy controversies of the day, and may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.”

While the bills’ scope is focused on public events involving invited speakers, there are a couple key questions here. University officials want to know how far this requirement “to remain neutral” extends. For example, the University of Wisconsin-Madison has spoken out against proposed bans on stem cell research on campus. Would the university run afoul of this law if it did so again?

It's a good and fair question, because once this legislative ball gets rolling, gravity is likely to tug it further down the path than supporters of the bill had originally intended. And it's worth reminding everyone considering supporting this bill that its words can cut both ways. Just because today we're talking about a topic a person on one end of the political spectrum cares about doesn't mean the other end can't use this law to force their views on campus in the same way. Whatever your political leanings, it's worth being concerned when government attempts to stifle the viewpoint of a school and its students.

And, of course, nobody is clear that this is limited even to speakers and public positions on campus, thanks to the overly broad language in the bill. When questioned, Jesse Kremer, who sponsored the bill, suggested that the legislation could also reach its spindly fingers into the classroom...

And although the bill is not focused on classrooms, Kremer suggested that such a student could potentially bring a complaint to a “Council on Free Expression” the bill would create—a body composed of leaders from each state school and two politicians.

...before going completely off the rails.

When one Democrat at a hearing asked Republican Representative and bill sponsor Jesse Kremer whether a geology professor would be allowed to tell a student who believed the Earth to be 6,000 years old that they are wrong, Kremer bristled. “The Earth is 6,000 years old. That’s a fact,” he said.

And here you see the problem. What one person claims to be fact is, in fact, plainly absurd. And a law that protects students or invited speakers from being told that it's absurd, either by the student body or the university, is a laughable law fit for the waste bin. If students and speakers are such innocent snowflakes that they cannot handle having their views ridiculed, then the university is no place for them. This too should cut both ways, of course, except that the students shouting down controversial speakers is itself a form of speech, whereas legislation neutering that same speech is censorious in the worst way.

Do students need to be more open minded on campuses today? Sure, I think that's fair. Should lawmakers with the barest grip on their own reality be legislatively forcing speakers onto campus as a consequence? Obviously not.

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]]>that's-not-how-free-speech-workshttps://www.techdirt.com/comment_rss.php?sid=20170612/11431537573Tue, 30 Jul 2013 12:15:00 PDTMIT Defends Its 'Neutral' Stance On Aaron Swartz As 'Reasonable' Even As It Failed To Understand Importance Of The CaseMike Masnickhttps://www.techdirt.com/articles/20130730/11575524003/mit-defends-its-neutral-stance-aaron-swartz-as-reasonable-even-as-it-failed-to-understand-importance-case.shtml
https://www.techdirt.com/articles/20130730/11575524003/mit-defends-its-neutral-stance-aaron-swartz-as-reasonable-even-as-it-failed-to-understand-importance-case.shtmlhas now been released. It's quite detailed and well worth reading. The "bottom line" is that it argues that MIT did its best to "stay neutral" throughout the entire process, and that this was a perfectly reasonable legal strategy, though, possibly not the best ethical strategy. MIT's President, Rafael Reif, has issued a letter with the report, stating that "I am confident that MIT's decisions were reasonable, appropriate and made in good faith." Taren Stinebrickner-Kauffman quickly hit back, arguing that the claim that MIT was "neutral" is not very convincing:

MIT’s behavior throughout the case was reprehensible, and this report is quite frankly a whitewash.

Here are the facts: This report claims that MIT was “neutral” — but MIT’s lawyers gave prosecutors total access to witnesses and evidence, while refusing access to Aaron’s lawyers to the exact same witnesses and evidence. That’s not neutral. The fact is that all MIT had to do was say publicly, “We don’t want this prosecution to go forward” – and Steve Heymann and Carmen Ortiz would have had no case.

Separately, she contrasts MIT's behavior with JSTOR's -- the organization which really had the only legitimate (and even then a weak legitimacy) claim to any "harm" from Swartz's actions. JSTOR very publicly made it known that it did not support the prosecution and did not wish to see Swartz prosecuted. MIT took a very different approach. From the summary of the paper:

MIT never requested that a criminal prosecution be brought against Aaron
Swartz. Early in the prosecution by the U.S. Attorney’s Office in Boston (the
“USAO”), MIT adopted a position of remaining neutral, with limited
involvement. MIT hired outside counsel who had experience in criminal law
and in the functioning of the Boston U.S. Attorney’s Office; and MIT
requested and received subpoenas for the production of documents. Some
documents were turned over to the USAO prior to receiving a subpoena, but,
for the reasons discussed in this report, this production did not violate federal
laws.

In keeping with its stance of neutrality, MIT never issued a public statement
about Swartz’s prosecution or advocated publicly on his behalf, even though
doing this was urged by Aaron Swartz’s family and legal team and by two
members of the faculty. One of the reasons for MIT’s silence was the good-faith belief, based on private conversations with the lead prosecutor, that the
Institute’s opinion would have no effect on the prosecution, and that public
statements might make circumstances worse for Aaron Swartz. MIT did
inform the prosecution that it was not seeking punishment for Swartz, and it
did inform the defense that it was not seeking any civil remedy from him.

The report also claims that, basically, no one in "the MIT community" seemed to care about the story until after Swartz's death, which seems like a bit of a cop out. Also, there's this:

MIT took the
position that U.S. v. Swartz was simply a lawsuit to which it was not a party,
although it did inform the U.S. Attorney’s Office that the prosecution should
not be under the impression that MIT wanted jail time for Aaron Swartz. (MIT
did not say it was actually opposed to jail time.)

Basically, this policy of "neutrality" may have been legally reasonable, but could still be seen as highly questionable given MIT's role as an institution of higher learning -- one that famously encourages open exploration and sharing of knowledge and information, as well as some element of hacking. I think David Weinberger makes the right point here:

When Pres. Reif writes that MIT’s actions were “reasonable, appropriate and made in good faith” I think we have to ask “Appropriate to what?” To MIT’s interests as a legal entity? Very likely. To MIT as a university? Not in my book.... MIT’s timid “neutrality” wasted an opportunity to stand against the unreasonable and inappropriate tactics of the prosecutors, and to stand for the spirit of inquiry, openness, innovation, and risk-taking that has made MIT one of the world’s great universities.

I understand that MIT wasn’t going to say that it was fine with Aaron’s breaching its contract with JSTOR. But MIT could have stood against prosecutorial overreach, and for the values— if not the exact actions— Aaron embodied.

That's exactly right. Sometimes taking a neutral stance on an issue of great importance is the equivalent of making the wrong choice. MIT missed the boat here.

As far as the Review Panel could determine, MIT was never asked by either the prosecution or the defense whether Aaron Swartz’s access to the MIT network was authorized or unauthorized—nor did MIT ask this of itself. Given that (1) MIT was the alleged victim of counts 9 and 12, (2) the MIT access policy, its Rules of Use, and its own interpretation of those Rules of Use (including the significance or “materiality” of any violation of those terms) were at the heart of the government’s CFAA allegations in counts in both indictments, and (3) this policy and these rules were written, interpreted, and applied by MIT for MIT’s own mission and goals—not those of the Government— the Review Panel wonders why.

As Lessig points out, this makes the tragedy of the situation even worse. Not only did MIT try to take a "neutral stance," nobody either at MIT nor among the prosecutors ever even bothered to figure out if Swartz's access really was unauthorized.